Browsing by Author "Ngema, Nqobizwe Mvelo"

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    PERSISTANCE OF CHILD MARRIAGES IN ZIMBABWE: A TIME TO TREAT THE CAUSE AND NOT THE SYMPTOMS
    (Societatea de Stiinte Juridice si Administrative, 2021-10-02) Ngema, Nqobizwe Mvelo
    The problem of child marriages is prevalent in Sub-Saharan Africa and the UNICEF has estimated that more than 37 per cent of girls get married before reaching the age of 18 year, while more than11 per cent get married before the reaching the age of 15 years. Zimbabwe has enacted progressive legislation to address the dilemma of child marriages. However the problem of child marriages still persists and this paper shows that it is easy to change the law but not easy to change the society. This paper argues that legislative change is the first step to the right direction but a multi-pronged strategy is necessary to address child marriages. It is suggested that it is crucial to deal directly with the root causes of child marriages in addition to legislative change. The causes are, inter alia, poverty, peer pressure, teenage pregnancy and lack of education. One of the major causes is rooted in culture and religion such as the practice of kuzvarira and kuripa ngozi. Kuripa ngozi is practiced in order to appease the avenging spirit of a murdered person by compensating his family with a virgin bride and there is a general belief that failure to appease it might attract bad luck and even death for the entire family of the perpetrator. Over the years custom has influenced the attitude and behavior of people. Therefore to change the law without changing the mind-set of the people through educational campaigns would be tantamount to dealing with the symptoms instead of the real problem.
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    THE CUSTODY OF MINOR CHILDREN DURING THE DISSOLUTION OF MARRIAGES: A COMPARISON OF CHILD CUSTODY IN SOUTH AFRICAN ISLAMIC LAW AND COMMON LAW
    (Societatea de Stiinte Juridice si Administrative, 2021-06) Ngema, Nqobizwe Mvelo; Ndlovu, Lonias
    In Islamic law, child custody is divided into physical custody and legal custody. Physical custody is given to a child's mother during the age of dependency, while legal custody is automatically assigned to the child's father. For a mother to qualify for custody and retain it in terms of Islamic Law, she must, among other things, not remarry. This requirement unfairly discriminates against women because the same is not expected of the father. Moreover, a mother is expected to reside in an environment where the father can visit and come back the same day. Failure to adhere to the above requirements may lead to custody being taken away from the mother. Again, this is discriminatory and leaves much room for arbitrary decisions that might not be in children's best interests. The South African Common Law regulation of child custody is more likely to promote the best interests of the child than its Islamic counterpart. In a recent landmark judgment, the South African Supreme Court of Appeal (SCA) held that the failure to give full legal recognition to Muslim marriages amounted to the violation of Muslim spouses' right to equality, dignity, children's rights, and the right of access to courts. Moreover, all provisions of South Africa's Divorce Act will now apply to all Muslim marriages dissolved by divorce. Therefore, the SCA rightfully extended the Common Law position on child custody to Islamic marriages to safeguard the best interest of the child.